Danny Nicol | The Left, Capitalism, and Judicial Power

Why is the British left so tolerant of the rise of judicial power? By ‘the left’, I refer to those in the Labour Party — a majority of members but minority of MPs — who supported the transformative election (and re-election) of Jeremy Corbyn as party leader. Whilst there may be multiple reasons why the left is ‘judge friendly’, I would argue that the main reason is that the left has been overrun with liberalism. It no longer seeks to replace the capitalist system with a system based on economic planning and public ownership. This scaling back of the left’s ambitions contrasts with earlier generations of left-wingers who sought a planned economy, in which public ownership would be the dominant form of property ownership. The assumption now on the left is that capitalism is to be retained, tamed, and managed by more state spending. Since most of the left no longer seek fundamental change, they are less critical of institutions that would block such change, and that includes, centrally, the judiciary. Accordingly, the once-familiar litany of cases that judges have decided against working-class interests has become unfamiliar. It has been replaced by a quite different narrative, whereby a liberal-minded judiciary defends the oppressed from right-wing British governments and therefore deserves respect. The fact that the judiciary did little to soften the tsunami of neoliberalism is brushed under the carpet.

The left’s commitment to socialism waxes and wanes. At times, its support for socialism has been strong. In the wake of the 1945 nationalisations of public utilities, for example, the Keep Left ‘manifesto’ of 1947 called for public ownership to be “extended to embrace every industry with a hold over the national economy”. And again in 1973, Labour’s Programme proposed the nationalisation of 25 of the top 100 manufacturing companies. At the time, Neil Kinnock, then on the left, pronounced that “the future of Britain is with socialist nationalization […] the capitalist system is a failure”. The ‘25 companies’ proposal was, however, vetoed by party leader Harold Wilson, prompting a campaign to democratise the party. Even in the mid-1980s, when the parties were converging on a pro-corporate stance, some socialists nonetheless stood firm — Eric Heffer arguing that it was impossible to create a classless society, as long as there was private ownership of major industries. The desire to replace capitalism has itself been replaced by the excessively modest and snail’s-pace extension of public ownership in the manifesto of the Corbyn-led Labour Party. When the left favours socialism, it seeks to restrain judicial power, mindful that the judiciary may present a threat to a radical, interventionist programme. When the left abandons socialist objectives, this motivation evaporates.

Evidence for this argument is readily apparent from the track record of the Labour Party as a whole. The 1945-51 Labour government, fresh from extending public ownership, opposed the creation of the European Court of Human Rights (ECHR), the right of individual petition, and the inclusion of the right to property ownership in the ECHR. Labour’s manifestos of the 1970s and 1980s committed the party to protecting individual rights through a series of specific statutes, enabling parliament not judges to retain the upper hand. There was an emphasis on workplace rights, women’s rights, and legal aid. Only in its 1992 manifesto, by which time Labour’s transition to neoliberalism was virtually complete, did the party propose entrenchment of constitutional rights. Even then, though, it suggested creating an elected second chamber with a delay power to safeguard individual and constitutional rights for the period of one parliament. However half-baked, this proposal nonetheless acknowledged the democratic contestability of human rights. Only with the advent of ‘New Labour’ in 1997 did the manifesto propose full-blooded incorporation of the European Convention on Human Rights. Thus, Labour’s warming to judicialisation went hand-in-hand with its embrace of a more capitalistic settlement. The same is the case with the Labour left.

Yet why has the left shifted towards liberalism? Perhaps the major reason is that its support for socialism has been worn down by the neoliberal hegemony that has dominated British politics since the 1980s. As is well known, Margaret Thatcher, alongside ally Ronald Reagan, established a programme — later known as the ‘Washington consensus’ — of free trade, privatisation, small government, and unfettered markets. This neoliberal globalisation brought with it a massive extension of the role of the judiciary as part of a more general elevation of the unaccountable. Thus the World Trade Organisation panels came into being, and the European Court of Justice flexed its muscles in the wake of the Single European Act. Before too long, the Labour Party capitulated to the new consensus, notably in its policy review of 1987-8. When Labour returned to office, instead of dismantling Thatcherism, it supercharged it. Along with privatisation, ‘New Labour’ ushered in further judicialisation and supranationalism. Those changes placed capitalism on a more secure footing. As Jim McGuigan has noted, capitalism has never been considered so legitimate, as a virtually natural state of being, as it has over the past 40 years.

The left is not impervious. It was unable to cocoon itself from this crushing hegemony. Although the small left band in the Parliamentary Labour Party resisted the blandishments of neoliberalism, they nonetheless re-emerged as liberal, seeking somehow a kinder, gentler capitalism, rather than a new economic system. They seek a “nice new, fluffy sort of capitalism that, should it ever come to pass, we may all grow to love”. By what alchemy the left will bring it into existence is anyone’s guess. In any event, for all the hysteria from Blairite MPs, Jeremy Corbyn’s election as leader heralded not a swing towards socialism but a return to social democracy.

One cannot however attribute socialism’s marginalisation entirely to the decades-long domination of neoliberalism. The commitment of many established left-wingers to socialism has been at best flaky even in more progressive times. Indeed, some on the left might be described as ‘left-wing on everything except socialism’: they tend to divert themselves into different territories such as opposition to nuclear weapons or to Britain’s various ill-fated interventions in Arab and Middle East countries. It would require meticulous research to establish to what extent figures such as Jeremy Corbyn, John McDonnell, and Diane Abbott ever supported the socialist transformation of society, and how their politics contrast with the previous generation of left figures, such as Tony Benn, Eric Heffer, Dennis Skinner, and Joan Maynard. Any analysis would be further complicated by the likelihood of political denial by all those involved: when left-wingers work and vote together day in, day out, unable to break out of their marginalisation, the sense of solidarity lends itself to the glossing over of political differences. Disagreements tend to be downplayed and not openly discussed.

This shift on the part of the left towards the acceptance of capitalism partly explains the left’s tolerance of the rise in judicial power. Yet the issue of judicialisation is also strongly linked to the growth of supranational regimes to which the left has belatedly lent its support: the European Convention on Human Rights system and the European Union. Both of these institutions contain particularly powerful judiciaries, which, in turn, have empowered our domestic judiciary in various respects. By bestowing legitimacy on these regimes, the left has disregarded Colin Crouch’s argument that the present supranational organisations, far from bringing about a compromise between democracy and capitalism, are mainly in the business of breaking down barriers to corporate freedom by creating global oligopolies. On Crouch’s reading, the supranational organisations have contributed to post-democracy rather than softened it.

The ECHR, for example, protects the peaceful enjoyment of private property. The left would not touch the ECHR with a bargepole were it serious about the socialist transformation of society. Aileen Kavanagh, a strong supporter of the judicial role, has conceded rather strikingly that the ECHR/HRA only results in marginal gains for the cause of liberty, but, she reasons, “marginal gains are better than no gains at all”. Yet, for socialists, the calculus is entirely different because there is a ‘minus’ side to the equation. The right of property ownership is a severe obstacle to the attainment of democratic socialism, particularly since the European Court of Human Rights has interpreted it as protecting the existing pattern of property ownership, and has smuggled in a proportionality test by which to assess the lawfulness of its restriction.

The left’s change of heart over the highly-judicialised EU is yet more alarming. An opponent of every EU Treaty since the 1975 Referendum, Jeremy Corbyn switched to the ‘Remain’ cause on his third day as party leader. It is hard to imagine that this Damascene conversion was occasioned by any great change in the EU. Rather, it seems to have been motivated by considerations of placating the Parliamentary Labour Party — not a successful tactic, since Labour MPs passed a vote of no confidence in him anyway. It is difficult to envisage a legal regime more inimical to the socialist transformation of society than the rules of the EU single market. One insuperable obstacle (among many others) is the series of liberalisation directives that constitutionalise privatisation in crucial fields such as energy, postal services, rail, and telecommunications. These guarantee the rights of firms from all Member States to operate on the national market, thereby precluding sectoral nationalisation. ‘Socialism’ may only take the form of publicly owned companies having to compete in a market with private operators along with the state providers of other countries. These directives cannot be wished away; they can only be repealed by unanimity on the council, presupposing the miracle of a complete absence of neoliberal governments in all the member states.

To justify the EU volte face, Corbynistas fell in with a ludicrously selective reading of EU law, whereby they advanced the argument that withdrawal from the EU would somehow mean a ‘bonfire of workers’ rights’ (an argument that patently failed to convince Britain’s workers). A convenient veil was drawn over cases such as Viking and Laval, which show the Court of Justice favouring the neoliberal four freedoms over workers’ interests. More fanciful still was the left’s ‘Another Europe is Possible’ thesis, which contended that the EU could be reformed into something socialistic. This argument studiously ignored that Treaty amendment may only be effected by common accord of the member states. Most fundamentally, the entrenchment of capitalism by the EU treaties went unmentioned, since the left now appears to favour capitalism’s indefinite retention.

Class analysis of the judiciary has also been a casualty of the left’s abandonment of socialism, and is readily apparent in the reverential tones towards judges. Thus the pro-Corbyn Shadow Justice Secretary, Richard Burgon, defended the Miller judges by invoking the rule of law. Yet, on a class reading, the Supreme Court did not ‘bungle the law’ in deciding Miller, as if it were all some complex technicality. Rather, judges form part of that section of the politico-economic elite that favours the capitalistic settlement of ‘soft Brexit’. In Miller, the judges figured that their best prospect for achieving soft Brexit lay in empowering the strongly pro-EU House of Commons. They decided the case accordingly. Judges are frequently called upon to determine cases in the context of the public interest, but their view of the public interest generally coincides with their personal political views. On this reading, Miller can be perceived as something of a British version of Bush v. Gore: a case in which the political bias of the judges was particularly glaring. As for Burgon’s evocation of the rule of law, as J.A.G. Griffith observed, “the Rule of Law is an invaluable concept for those who wish not to change the present set-up”.

Conclusion

The British left’s support for judicial power begins to make more sense when set in context. It is the contemporary left’s dogged liberalism — its acceptance of capitalism, and its wishful thinking that it can somehow tame capitalism — that leads it to accept the growing power of the judges. Yet capitalism is not easily tamed, and social-democratic programmes tend to collapse into neoliberalism. Should the time come when the left comes to regret its turn towards liberalism, it may also turn against judicial power.

Danny Nicol is Professor of Public Law at the University of Westminster